Anjinappa vs Channegowda @ Karigowda
2022 Latest Caselaw 5148 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 22ND DAY OF MARCH, 2022

                     BEFORE

       THE HON'BLE MR.JUSTICE R.NATARAJ

 REGULAR SECOND APPEAL NO.2394 OF 2018 (DEC)

BETWEEN:

ANJINAPPA
S/O LATE KEMPANNA,
AGED ABOUT 84 YEARS,
RESIDING AT KANNUR VILLAGE,
BIDDARAHALLI HOBLI,
BENGALURU SOUTH TALUK,
PIN - 560 049.
                                      ...APPELLANT

(BY SMT. VASANTHA, ADVOCATE)

AND:

CHANNEGOWDA @ KARIGOWDA
S/O LATE PATEL MUNEGOWDA,
AGED ABOUT 78 YEARS,
R/AT MITAGANAHALLI VILLAGE,
BIDARAHALLI HOBLI,
BENGLAURU SOUTH TALUK,
PIN-560 049.
                                    ....RESPONDENT

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST    THE  JUDGMENT     AND   DECREE   DATED
13.11.2018 PASSED IN R.A.NO.47/2009 ON THE FILE OF
THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
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BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING
THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE
DATED 23.03.2009 PASSED IN O.S.NO.471/2000 ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN),
BANGALORE RURAL DISTRICT, BANGALORE.

    THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal is filed by the unsuccessful plaintiff

challenging the concurrent finding of fact recorded by both

the Courts dismissing his claim of perfection of title to the

suit property by adverse possession.

2. The parties shall henceforth be referred to as

they were arrayed before the Court of the Principal Civil

Judge (Jr. Dn.), Bangalore Rural District, Bangalore

(henceforth referred to as the 'Trial Court'). The appellant

was the plaintiff while the respondent was the defendant

before the Trial Court.

3. The plaintiff claimed that he was in actual

possession and enjoyment of the suit property since the

year 1978. He claimed that the defendant being the owner

of the suit property attempted to interfere with his

possession three days prior to the filing of the suit and

therefore, sought for declaration of his title to the suit

property on the ground that he had perfected it by adverse

possession.

4. The defendant contested the suit and claimed

that the suit property was owned by his father, Sri Patel

Mune Gowda, and after his death, the defendant and his

brother were in possession, cultivation and enjoyment of

the suit property. He claimed that he and his brother as

the owners of the suit schedule property had sold 01 acre

30 guntas out of 04 acres 39 guntas in Sy. No.114 and

were in possession of the remaining land. He claimed that

the plaintiff was never in adverse possession as alleged by

him.

5. Based on these rival contentions, the case was

set down for trial. The Trial Court framed the following

issues:

"1. Whether plaintiff proves that he is in possession and enjoyment of suit schedule property since from 1978 without any

interruption, openly with the knowledge of defendant and hostile towards defendant and thereby perfected his title over suit schedule property by way of adverse possession?

2. Whether plaintiff is entitled for the relief of declaration as prayed in the plaint?

3. Whether plaintiff proves the alleged interference by the defendant?

4. Whether plaintiff is entitled for the relief of Permanent Injunction as prayed in the plaint?

      5.      Whether     court       fee   paid    is
sufficient?

6. Whether suit is bad for non-joinder of necessary parties?

7. What order or decree?

Additional Issue

1. Whether the defendant proves that he is in possession of the suit schedule property along with the LR's of his deceased brother Sri Narayanagowda?"

6. The son and general power of attorney holder

of the plaintiff was examined as PW.1 and he marked

documents as Exs.P1 to P9. He also examined two

witnesses as PWs.2 and 3. The defendant did not enter

the witness box and did not produce any oral or

documentary evidence.

7. Based on the oral and documentary evidence,

the Trial Court held that the plaintiff had not proved the

essential ingredients for claiming the relief of adverse

possession. It held that the plaintiff did not establish as to

when he entered possession and when his possession

became adverse and also as to when he perfected his title

by adverse possession. It held that mere production of the

revenue records would not confer adverse title upon the

plaintiff and hence, dismissed the suit.

8. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiff filed Regular Appeal No.47/2009

before the First Appellate Court. In the said appeal, the

plaintiff filed two applications, namely, I.A. II and I.A.V

under Order XLI Rule 27 read with Section 151 of the Code

of Civil Procedure, 1908 seeking production of additional

evidence. He also filed an application (I.A.IV) under Order

VI Rule 17 read with Section 151 of the CPC seeking

amendment in the plaint.

9. The First Appellate Court heard the learned

counsel for the parties and framed points for consideration

and after considering the oral and documentary evidence,

held that the plaintiff had not proved the ingredients of the

relief of the adverse possession and hence, dismissed the

appeal and also rejected I.As.II, IV and V filed by the

plaintiff.

10. Being aggrieved by the aforesaid Judgment

and Decree, the present Regular Second Appeal is filed.

11. The learned counsel for the plaintiff / appellant

submitted that the plaintiff has been in possession of the

suit property for over 50 years and the evidence of PWs.2

and 3 testified the said fact. He contended that the Trial

Court and the First Appellate Court failed to consider the

revenue records which indicated that it was the plaintiff

who was in possession of the suit schedule property.

12. The relief of adverse possession has to be based

on the date as to when the plaintiff entered possession

adversely and whether it was within the knowledge and

notice of the defendant. It is incumbent upon the plaintiff

to prove that such hostile possession continued for well

over 12 years to the notice and knowledge of the

defendant. In the case on hand, except claiming that the

plaintiff is in possession of the suit property, the plaintiff

did nothing to establish his possession and / or that he

was in hostile possession of the suit property. Mere

assertion that he was in possession cannot blossom into a

right to claim the relief of adverse possession.

13. In that view of the matter, the Trial Court and

the First Appellate Court have considered the oral and

documentary evidence on record in the right perspective

and have dismissed the suit. There is no merit in this

appeal and the same is dismissed.

In view of dismissal of the appeal, the pending

Interlocutory applications do not survive for consideration

and the same stand disposed off.

Sd/-

JUDGE

sma